November 30, 2007

Beer and Turkey Thirty

by emptywheel

I just turned in the paper I've been working on. Luckily I've got a couple of these stashed away in the basement.

So I'm off to clean the house--I've got house guests coming in five hours. And then, tomorrow is Turkey Day for me--an odd little custom some friends and I have adopted that makes the whole process less stressful. We got the full Heritage Turkey thing this year; I'll let you know if it's worth its considerable price tag.

All of which means there'll be light posting until Sunday (rumor has it the football has already started for the weekend, but you wouldn't know it by what's on the TV).

But keep track of the site anyway. I've got an announcement or two in the next couple of days that may be of some interest. And Monday, I get to start my blog and bill paying frenzy I've been warning you all about.

Aint discussin football unless it was Dolphins wasting Bears in 1980s in a certain game, everyone likes to see that team Lose. Even too good for the midsize screen television at home, better at the neighborhood commercial establishment.

Sheldon delivers a nice smackdown on p.33-34 in pdf 1: "we slow ourselves down a lot, and we limit our collective options considerably, if we create an atmosphere in which every horse has to be examined for its Trojan compartment, and every venture assayed for its twisted motivation."

I really wish you guys would stop going on holidays. (We do Turkey Day in October, and it is a much shorter event.) You go on holidays; Congress is in recess; and all hell breaks loose in Canada.

One bit of the hell has turned out to be a Good Thing, though. The Federal Court of Canada ruled yesterday that the United States is not a safe country for refugees and has struck down the so-called Safe Third Country agreement as unconstitutional.

Or you could just click on my handle and read my boss. We are very happy tonight. There is a whole lot to be scared about in Canada -- don't ever doubt that. Our current government is controlled only because they don't have a majority yet, but we have a worse problem than you do. Our PM is not stupid. He is, y'know, one of them, but he differs from your president in that one unfortunate respect -- he is smart, and if he gets a majority, well ... Fear for us.

But for tonight, at least, we can read Justice Phelan's eloquent judgement, which matters very much in terms of some traditions that are American as well as Canadian. There are many social-justice organizations, some of them church groups, who have worked to move refugees from Central and South America quietly through the U.S. to safe haven in Canada, and the Orwellian-titled STC agreement was aimed at people like that, not at terrorists.

I think this is also a signal that the Canadian legal community are getting annoyed about the American response to Justice O'Connor's inquiry -- the case of Maher Arar. There comes a time when any serious judge or lawyer has to remember where s/he comes from, yes?

Okay, I have been patiently awaiting this announcement. You mentioned something was coming before traditional Turkey Day... Aahhh...I HAVE to WAIT longer... Oh the suspense of it all. PLEASE just promise me it means MORE of your great work!

~pdfs; noticed first page document 2 has a redacted date. Lots of pages of for public release formal statements of DNI from hearing. Clearly McConnell has reviewed the materials, even letting an El Paso Times interview reference remain as a footnote. A draft of neoFISA from Leahy to DNI. The way I remember, EFF site's copy of expedited compliance order from judge this week cited one person only assigned to collate responsive documents, 250pp unclassified, 50pp classified; initial release today, second set sometime early December, What I see may contain gems, but mostly is reflecting congress' already possessed documents, though probably much of that new in the public sphere. I think the page count cited in the court papers seems padded looking at the actual 200 pdf pages published today. EFF's petition for expedited injunctive relief based on FOIA turnaround 20 days as average, but after 90 days EFF got judge to agree this was classic foot-dragging a la EPIC suit in recent past. Expect any letterhead from Kstreet beginning with USTA etc to be state secrets, and EFF targeted exclusively the time leading to the yKos convention days when executive jawboned congress into passing PAA, and bracketed few months, as ew lamented in a prior thread when it was clear EFF had found an understanding forum and judge to unearth some of the cloakroom work which involves retroactive immunity telco style.

Patriots
The Patriots will lose and Rodney Harrison will be the reason predicts the inexorable EmptyWheel. I need to sit with that for a while. I'm inclined to believe in the team’s fallibility but not necessarily for the reason EmptyWheel predicts. Their are a lot of parts that can go wrong, 22 plus special teams, and sometimes they all go right it's just the way the ball bounces. Just how predictable is the failure of former steroid-taking football player’ demise? To what extent does he lose body mass, strength or speed? How much more likely is he to be injured? Years ago, this defense could not perform successfully without Harrison’s leadership, now it can. Unless some team goes after Harrison and gets the better of him, two big Ifs, then I’ll have to disagree with EmptyWheel’s prediction of laying the loss on Rodney Harrison.

Look at whom the pats have left. The regular season is down to the month of December… but it’s a long month in the NFL with five games.

I agree the Pats defense is not the dominating defense it once ways. They can still make game winning plays but they can be beaten now more than ever. While they’re extremely strong in the line and the line backing corps, the secondary is vulnerable. There was just one thing that came between the Eagles and their go ahead touchdown in the fourth quarter, QB AJ Feeley’s lack of patience. All game long the Pats took away the deep ball and gave up the passes under the deep zone. Feeley thought he had the game-winner. D’oh! The Eagles offensive game plan may have left a successful blueprint for how to attack them.

The Pats play the Ravens Monday Night on the Road. The Ravens are 4-7 overall and on a five game losing streak but they are 3-2 at home, and they’ll be playing at home on national television against the undefeated New England Patriots. If there’s one thing that’ll make their season, it’s taking down the Pats on Monday Night Football. The Ravens will be up. We don’t know if the Pats will be up-they certainly were not up last week against the Eagles.

The Ravens have the 9-2 Colts at home the next week; The Pats have the 8-3 Steelers at home.

College Football
If you thought the best of college football regular season was over after Amherst played Williams, Harvard played Yale, and Michigan played Ohio State? You were wrong. Check out this lineup for the weekend’s match ups.

The first game on the list could be a real barnburner. Cal vs. Stanford usually is-throw out the records. BC beat VT with a last minute drive earlier in the season. They play this weekend in the ACC championship game for a $5 million bowl bid. (5 is the net, not the gross for the bowl bid.)

Hmmm...though I've not finished reading the document dump, I have noticed at least one major thingee which EFF themselves state very clearly:

EFF sued for the release of the records under the Freedom of Information Act (FOIA) earlier this year, demanding documents concerning briefings, discussions, or other contacts ODNI officials have had with representatives of telecommunications companies or members of Congress about amending FISA. Today's 250-page disclosure focuses on communications between ODNI and members of Congress but includes no information about the telecom industry's lobbying efforts.

(My Bold)

I concur with JohnLopresti that the Administration via the DNI/ODNI is in fact still maintaining that identifying the Telcos (and others - read on!) is a State Secret.

And that brings me to page 66 of the 1st part of the document dump, in the Section called "Securing Assistance Under FISA".

You will notice that the date of this particular document is May 1, 2007. It is after the FISC rulings.

The second paragraph reads:

Presently, FISA establishes a mechanism for obtaining a court order directing a communications carrier to assist the Government with the exercise of electronic surveillance that is subject to Court approval under FISA. However, as a result of the proposed changes to the definition of electronic surveillance, FISA does not provide a comparable mechanism with respect to authorized communications intelligence activities. The proposal would fill this gap by providing the Government with means to obtain the aid of a court to ensure private sector cooperation with lawfull intelligence activities.

My SWAG (with no actual science involved *g*) is that this refers to folks who are not Telcos, but instead are ISP and/or Email providers.

All of whom have never been publicly identified previously as "helping" our poor ol' government warrantlessly surveil folks including our own citizenry.

Nor have any of these "communications intelligence" providers been made a party to a civil suit charging them with violating our rights by illegally assisting the government in warrantless domestic surveillance.

Which leads me to contemplate whether the FISC rulings had to do with non-Telco ISP and Email providers.

Just so folks in these parts don't think you're smokin' some of that BC Pure Dynamite, I figgered to drop by here with a little word or two of support for what y'all said about what's happening north of the 49th.

Me & the better part of my herd live in and around Cowtown (Canadian for Calgary, which is the heart of Canadian neo-you-know-what-ery, as well as where the big oil money lives. Not surprising Cowtown is also where our Grade A Prime Minister comes from and the location of his "riding". In keeping with this theme, the member of Canada's Parliament or "MP" of one of my herd here is an actually fully Rove-certified "you know what", right down to boot camp under Karl and a spate of doing Lord-knows-what to the unmentionable regions of rats in Oklahoma on behalf of that winger U.S. senator who is working to outlaw evolution & muzzle Gore from spreading heresies on global warming.

Even the provincial government here is full of "you know what"-ocons. In fact right now the leader of the provincial government here is in quite a pickle over his party just having nominated a candidate for the provincial legislature who won the nominatio on a platform of various antis: anti rights for gays, anti women, anti tolerating anyone of the coloured persuasion, anti anyone who doesn't accept the bible as God's word as literally true, anti taxes, you name it - you know the drill.

The problem isn't that this coyote is unique or hasn't been the subject of previous sightings; the problem is that his species have got full of themselves and their destiny from the perception of wingnut political "success" in the United States and as well as Canada, not to mention in Alberta, so much so that they've been emboldened to leap right out of their closets.

I also want to put in a couple of words on Justice Phelan of the Federal Court of Canada on his ruling about the United States not being a safe place for Canada to send refugees.

As I imagine you know judges who can write this well are rare enough. But to write this well AND have stones, that's downright precious. I've been in and around the Canadian court system for long enough to see exactly how judicial courage has become extremely scarce, particularly in this province. Well, there are some, but they're mostly fillies. It seems ovaries grow bigger than testicles around these parts.

I've also had the pleasure of appearing before Justice Phelan; and from that and reading some of his other judgments, I'd say this ruling is pretty representative ... of him; unfortunately not of Canadian judges.

Finally, I just have to make a couple of little points about today's document dump by the ONDI that EFF put up on its website.

First, the little lady judge in that case illustrates my point above, so maybe the trend I'm seeing with judicial ovaries out-gaining gonads is continental. I guess maybe emptywheel proves the same point.

Second, releasing stuff that doesn't hurt too bad first seems to me pretty much in character for the Bush administration, so I'm inclined to withhold judgment for a spell on whether they'll actually claim privilege about DNI McConnell's collegial meetings with his buds among the winger telecomms. Releasing this batch first is just as consistent with giving those buds time to adjust to this very recent ruling, and maybe also to see if the Bushies and their buddies both can figure out how to spin what's coming.

I'm planning on watching at some of the usual suspects among the right wing bloggers for the signs; that seems to be the Bushies' way.

Hello, Albertan.Stan; nice to meet you. Although I've been here in Torontostan for too many years, I come from Calgary (and points south -- Medicine Hat when I were a wee tad) and three of the sibs are still in Calgary, so I actually understand what you wrote there. ;-)

What scares me is not so much the bad guys -- I mean, there are bad guys, but we knew that. What really scares me is all the nice people who seem to have forgotten what it takes to maintain a democracy, which means a lot more than voting. (Or maybe they never knew?) That's why I was so excited by Justice Phelan's decision: he's wise and he's a good writer, and manohman it is a relief to discover that we still have people who can and will do that. Next time you see him, give him a hug and a kiss from me, eh?

And please give a morning wave to the Shining Mountains for me as well. I miss them all the time.

Well, I'll post information about Leeland Eisenberg, the man who took hostages at Hillary's headquarters, here. According to the Boston Globe, Leeland Eisenberg, formerly known as Ralph E. Woodward Jr., was a victim of clergy abuse and was one of the 541 victims to receive payments from the Roman Catholic Archdiocese of Boston in the 2003 case.

I am really distressed that you could not find a pint of Guinness. That glass of something called "irish stout" is nothing but coloured beer. Guinness, the only true Irish Stout, is a wonderful, delectable, intoxifying, liquid that caresses the palate and feeds the soul. A glass of tghe other stuff put me off so much I could not read the post. I am sure you had some words of wisdom to say but if you had had a pint of Guinness you could have written a masterpiece.

BlueStateRedhead - kathryn in ma and i were just discussion a ma meetup (over at trex's place). kathryn wants some help downloading podcasts, so we thought some place with free wifi and coffee (like a panera bread) would be fun..... or did you have something else in mind?

Selise. Grest idea for another meetup. Thanks all for the heads up on trex.
re: BlueBayState-ish meetup
There are some free wifi cafes on Cambridge/Somerville side of Charles. Panera is one I don't know. But I am game and geared up to go, in fact podcasting is a skill I want to acquire too now that I am the last person on the wired earth to acquire an Ipod.

BlueStateRedhead - i'm sure it will either be the same url (or a redirect). but will phone you if not (i'd be surprised as hell if that's not the case - jane isn't going to want everyone having to hunt for a new site). also, please feel free to phone me anytime....

While we're all waiting for Santa to get back up the chimney, if you're interested in a very good read on the state of play with respect to FISA, Marty Balkin over at the Balkinization blog has an excellent referral to a "FISA monograph by David Kris" that is a must read.

I don’t know what’s going on anymore. There was some miscommunication yesterday and I was led to believe that the subpoenas were being issued yesterday.

That turned out to be wrong.

As of 3 p.m. Friday, Wilkes’ defense attorney, Shereen Charlick, still didn’t have the subpoenas in hand (and she wasn’t happy about it either). Judge Larry Burns still hadn’t signed off on them, although Charlick has been led to believe he will.

Maybe he signed them in the waning hours of Friday afternoon. If he didn’t, we’re all scrambling to meet a Monday deadline for motions explaining why we shouldn’t have to answer to a hypothetical subpoena that hasn’t been issued.

Hmmmmm...we had a Heritage Turkey @$10.00 a pound....it was....um....tasty? But Chewy. Our local Heritage website advised cooking to 140 degrees, then letting it 'cook' while resting out of the oven. I'd say make it a good 150 or 155 degrees. This girl was long and lean and she had a waist. Not much cleavage, though....I don't know if we'll repeat. There was talk of BUYING a chick or pullet or whatever they are called and raising it for nest year. But there were no takers. We did have a Safeway turkey...just in case...and it was truly awful. I think we'll go the intermediate route next year. (I've heard the traditional name for the 'chick' is Thanksgiving).

FISA Hearings 6-29-76 at 111. Although classified testimony about the NSA’s surveillance capabilities is unavailable, there was open testimony in the Senate that is relevant.

David Watters, a telecommunications engineer and former employee of the CIA and Western Electric (the engineering division of AT&T), described in great detail the surveillance methods used by the government for "broadband interception".

By broadband interception we mean that kind of wiretapping wherein the government places electronic
surveillance on a large number of parallel communications circuits simultaneously. This practice may be done by
interception of major trunk lines within or between cities...It is being done by interception of major cross-country microwave link pinch points each containing tens of thousands of message circuits. This is in addition to similar surveillance on the primary U.S. electronic portals for foreign telecommunications traffic...

Today the federal government is stalking at random throughout our telecommunications common carrier circuits. In most cases, this is being done without a court order. In the greater majority of these intercepts, there is no specific order from the Attorney General. Rather, this activity is being done on a blanket order...

[O]ne must observe that a broadband intercept surveillance operation injected into a single microwave link, for instance, permits the scanning of hundreds of thousands of messages in a single day with sophisticated computer-like equipment operated unattended, or by one or two persons...

It must be understood that when a warrant would be issued for a certain targeted objective to be sought through the broadband system, this does not ordinarily mean that special equipment is installed for that objective alone. The equipment is already in place in our microwave long lines network. What it really means is that a new set of punched cards are inserted into the system to operate as a new addition to the watch list of called telephone and telegraph numbers or to the trigger word lexicon.

Note that AT&T even back in 1976 already had in place the "vacumm cleaner" technology and used it to provide warrantless surveillance to the Government.

What makes anyone think that in the following 30 years of technology advancement that "vacumm cleaning" went out of favor?

The David Kris article is quite interesting, but marred by a couple of fundamental misunderstandings. First, like almost everybody else, he doesn't understand why the original FISA made the distinctions between wire and radio communications. The assumption by lawmakers in 1978 was that, while it was technically possible to identify who's on each end of a wire communication, it was impossible to do that with radio communications (the Watters testimony notwithstanding, I believe that's bit is taken out of context). Once you understand that, his confusion about why the law was written the way was should disappear.

His second misunderstanding is more dangerous. His discussion of foreign-to-foreign email is unbelievably technologically naive. He apparently doesn't realize that everything he says about email applies equally to essentially all voice communications. He believes it is uncontroversial to suggest that the government should have completely unfettered access to all stored email in the U.S., as long as the government asserts (with no redress at all) that the sender or any of the recipients might possibly someday read that email outside the U.S. Using his logic, every single electronic communication that has every occurred or ever will occur can be monitored by the government without any warrant.

This is the statement that particularly baffles me:

There is no reason to distinguish between foreign-to-foreign e-mail messages acquired from servers located in the United States, and foreign-to-foreign telephone calls acquired from switches located in the United States. If the latter are exempt from FISA, the former also should be exempt.

There is a huge difference (legally, morally, and practically) between stored communications and real-time surveillance. It makes me wonder if Mr. Kris has ever heard of voicemail. O.K., that was snarky. It really makes question his honesty. The guy is clearly well-informed about the legal aspects of these issues. He seems to understand that there is such a thing as VOIP. Does he really not understand fiber optic technology? Does he really think that persons in the U.S. (like email providers) suddenly lose their own constitutional protections when they have foreign customers? Would he apply the same rationale to these hypotheticals:

Suppose an investigative reporter (we'll call him Seymour H. for no particular reason) comes into possession of printed copies of "Al-Qaeda" emails. Can the government pull a warrantless black bag job to break into Seymour H.'s home and office to acquire copies of those pages?

Suppose one of my co-workers is a Reservist and gets deployed to Afghanistan. If we forward all office email to his .mil account, does that give the government the right to every email sent to all the distribution lists that include his account? Do they get to choose how they retrieve them? Instead of going to the email servers, do they get to black bag my house, image the hard drive on my laptop to get a copy of my .pst file (oh, and while they're there, they'll probably want to image all the rest of my computers because, who knows, I might have copied my .pst file to one of them)?
[Sardonic note to NSA/CSS/FBI dudes: I go to church at 9:30am every Sunday morning, that's your best bet for scheduling the black bag job.]

Well, I guess I don't qualify as a liberal in outlook -- it seems I'm some manner of fearful conservative who's allergic to change (particularly when it's partly just for the sake of change), rather than open and welcoming to new ideas as FDL and most of its readers are. Because I can't stand today's formatting changes at FDL. I loved the original, dependable, unchanging lake graphic site-header (although I don't actually dislike the new logo), and especially the comment section format, which was so uniquely well-designed after the transition to wordpress, and both aesthetically-pleasing and very readable, as compared to the new format's far-left-margin pinched thin font. And the new, generic, (subject-photo-free?), busy look (although I appreciate the need for more ads to be intermingled) etc., etc., just, well, enough of that. Excuse the ill-mannered venting.

I'm posting to second what Mad Dogs says above - that the David Kris pdf link M.D. provided (thanks a bunch also for the EFF links, Mad Dogs), courtesy of Marty Lederman, is an absolute must-read for all of us, and for every single Member of Congress - especially for every member and staffer of the Intelligence and Judiciary Committees. It's everything you ever wanted to know about the current FISA debate and underlying realities, in exquisite detail, written in crystal-clear language (early summaries near the top for those who don't want to absorb the whole thing) by someone (Kris) who has done his homework thoroughly and painstakingly. It's very, very helpful information on many fronts. It has already changed my opinion about the original FISA legislation, and what amendments to it - provided we had an independent and conscientious legislature capable of writing its own laws without simply taking dictation from the Executive Branch, which the EFF documents seem to indicate, however, we do not - would be wise to make at this time.

This has to be the definitive position paper on the ongoing FISA debate, and it just stuns me to think that this guy has not yet been invited to testify to Congress on this matter. Thanks to lhp for emphasizing Kris's recent book, and to whoever solicited this paper from him. I'm only about half-way through, and have learned some eye-opening new information about the history of FISA and the purpose of some of its key language. Kris's explanations are making sense of all the smoke and mirrors we've been subjected to for months. Don't miss it:

So, William O., does that mean Kris is misunderstanding the exemption in the original FISA for radio/microwave international communications generated from U.S. soil except when just one intended recipient of the broadcast was also located in the U.S.? Because that exception seems to indicate that Congress expected that knowledge to be attainable, somehow (as someone not versed in the technology).

I haven't gotten to Kris's detailed description of the stored e-mail yet - although it seems that this area is the source of the "foreign to foreign on a U.S.-located wire" surveillance red herring that was used to promote changes to FISA (because Kris makes clear that, pre-email, intercepting on U.S. soil if both ends of a communication are foreign was never covered by FISA, contrary to the "conventional wisdom").

Will Ockm, I wonder if about eight years ago technology was so advanced that government simply found it more expeditious to put out rfps for equipment vendor and silicon fab outfits to build gear like a ?Narus? deep packet inspector, and MirrorWrite a bitstream to the server farm, instead of the original idea government folks had to attempt to persuade standards bodies to revise header information in the various transmission protocols, for calea access or other FISA authorized purposes; I have been away from the technology a long time definitively; though I believe world standards bodies decided not to mess with IP or html; instead we got proprietary xmls, and I have little idea how extant frame relay or even asynchronous transmission mode remain or if they are ready to go out to pasture; and there is a plethora of other protocols perhaps too techy to mention, and many unknown to me; this week reading of the flap over the flavors of zfs has been a charge, as well. It seemed dereg and then the dotcom boom complicated the original approach for modernization of wiretapping; one might find thousands of vendors at the upstart tradeshows then but only a few members remaining in ATM and FR fora. It is a complicated subject, and one that I think lhp was trying to contemplate in a generalist way in the fdl post a few days ago. There is a lot of mundane commercial thinking involved in product design cycle planning, and I think the history writing on these topics could be a lot more helpful to flumoxed legislators inside the Beltway if presented with a solid integrated understanding of where transmission technology went. Obviously nsa and McConnell at that helm at some juncture, had to be ahead of the leading edge imanently throughout, but the news media and blogs I have seen all appear to have less insight and intensity than some of the fine folks who have helped ew ponder the legal and political aspects of the topsy turvy way things have developed. Since a lot of this happened with some very good people at fcc during Clinton-1 term-1, although the atmosphere there was refreshing at that time, I have wondered often in retrospect how much commission inattention or congressional obstruction let some of these problems simmer instead of proactively helping to create a better mix of solutions, especially with a view to outcomes that actually respect the extant fisa process and those ungainly ten items that got placed in the constitution but were too controversial at the time to be standalone articles, instead designated simply as the bill of rights.

"... both ends of a communication are foreign was never covered by FISA, contrary to the "conventional wisdom")."

Curiously, in spite of no basis in the original or successor statutes, this has been the "conventional wisdom" hasn't it? I have never understood this misperception. Really, what in the world do people who believe this think the NSA has been doing all these years?

In the '70s, there were two types of radio communications that were significant parts of the telecommunications infrastructure, microwave and satellite. Microwave transmission in the U.S. were all domestic communications, excepting possible edge cases on the border with Canada (but not Mexico, as far as I know). Satellite communications were all international or foreign-to-foreign (with perhaps an exception for calls to/from Hawaii, but nobody seemed concerned about that).

The behind-the-scenes deal was [I have no personal knowledge, just making logical conclusions] that the NSA would be allowed to vacuum up all the satellite stuff and mine the data, but they had to promise to delete anything that concerned Americans. The deal was made because we had reciprocal arrangements with the four other English-speaking countries to share this sort of intelligence.

The definitions in FISA were written to recognize certain technical realities without directly referring to them.

On a side note, Kris seems to suffer a bit from the Joe Klein problem. He does some research that shows that the current Administration is lying through their teeth about the "all overseas communications were satellite-based in the '70's", but can't make the logical leap to question anything else they say. If one side of the debate is obviously lying about the one fact that's in public record, shouldn't you be at least a little suspicious about the rest of their assertions?

Thanks William O. That's very helpful. I need to process all this now that I've finished Kris's piece. I at least didn't detect slant or bias from Kris in his explanations - and I do think he is skeptical of possible hidden motives by the Bush administration in their (meaning the Senate Intelligence Committee's FAAct) proposed FISA language, but he's understandably circumspect about the way he phrases that skepticism. In other words, he's still pretending they may be acting in good faith. As, unfortunately, are far too many Senators, based on the correspondence released via the EFF's FOIA request.

Kris seems to make excellent, precise recommendations for edits to the Senate FAA bill in his appendix, and he wrote a lengthy, though necessarily hasty, overview on May 1 of the administration's original proposed FISA Modernization Act (the 66-page bill that was included in the EFF release yesterday), at the request of staff on the Senate Intelligence Committee, which Kris links in his new paper, here:

http://intelligence.senate.gov/070501/kris.pdf

I haven't plowed through that one yet (and I imagine he has revised his thinking somewhat over the intervening months).

Also note this interesting link Kris provided, which is discussing the technology at the heart of the current problem of locating people geographically through use of modern communication devices (another one I've yet to read):

http://research.sun.com/people/slandau/PAA.pdf

Finally, note that I reversed in my 16:46 comment the order of what was to be exempted from FISA. FISA would apply to radio/microwave communications generated on U.S. soil only if all intended recipients were also in the U.S. So if at least one intended recipient of the radio transmission was abroad, FISA would not apply to that interception, wherever the collection was made.

One aspect of the legal complications stems from the misunderstood term 'information services'. LHP identified this as a key legal term in FISA discussions. It's a key legal term for Net Neutrality, as well as FISA.

Basically, phone started as an analog technology. As Wm Ockham points out, by the 1970s, some of it was already carried via satellite. In addition, starting sometime in the 70s, the analog technologies of phone and video began the switch to digital. This fundamentally altered the infrastructure, economics, and legal bases of telecommunications.

It's important to keep an eye out for the term 'information services'. As an analog technology, 'phone' was regulated as a Common Carrier (its roots actually go back to the old British common law designation of 'public carriages' and 'public coaches' as common carriers. ) The term originated with modes of transport like carriages, coaches, ships, and railroads; when telephone first received federal legislative attention in the 1930s, the concepts that originated in transportation were extended to cover communication that happened between cities and towns.

Consequently, as a 'common carrier', phone (and later cable) was regulated under the FCC as a utility (which I use to mean: ' a monopoly that government has decided to protect because it has a unique nature, or a unique PUBLIC benefit, that requires it be produced or provided by a type of organizational structure that is inherently monopolistic.').

The regulatory protections worked very well for telephone companies (and cable companies) in an analog era. But in the digital era, those same companies saw more... 'opportunity' for revenue if they could be legally recategorized as 'information services.' They believed that continued regulation as public utilities would restrict their future 'opportunities' for revenues in a 'free market' of OnDemand cable, and video downloads delivered via DSL phone line owned by the telcos. So the phone companies and the cable companies sought to change the LEGAL definition from 'phone and video' to 'information services'. They were successful in several steps. Two high points were: (1) a legal case referenced as 'Brand X' (2005), which changed existing legal definitions, and ruled that digitized phone and video were 'information services'. Then the telecoms used that legal case to go before the FCC and claim that they should no longer be regulated as 'common carriers.' The FCC caved to their requests in late 2005, IIRC.

That shift in legal terminology -- from being 'common carriers' to being 'information services' -- promised to open up whole new streams of revenue for telecoms and their ISP divisions, but it also raised new legal questions. Some of those issues are playing out with FISA.

Look at the dates of the dustup over FISA (2004, 2005). Those dates are during the period when US laws did not provide legal authority for the government to snoop on 'information services'. (Information services is most easily thought of as 'digital content' -- email, VOIP, onDemand and online video, and mobile phone transmissions.) This FISA mess strikes me as part of the 'realignment' of technologies, and the social and legal ramifications of those shifts.

For technical underpinnings, I defer (as always) to EW, Wm Ockham, and a number of other commenters.
Rayne has other very interesting insights about how this all plays out for the telcos, who avidly seek (business) protections from the feds. But rather than risk misquoting her, I'll leave it at that.

The link to sun.com was fascinating. It's the best thing I've seen yet, but they missed a couple of realities. They discuss the idea of building a system to match the PAA without completely acknowledging that the system's already built and the law was written to legalize it. They also seem to assume that the government hasn't been actively directing the routing of communications, but the various information that's been released strongly suggest that is exactly what's happening.

Everybody needs to read that article and remember two things. First, the Call Detail Records are, by definition in FISA, part of the content of a communication. Removing that "metadata" from the purview of FISA is the Administration's number one goal (more important that retro-immunity). Second, don't assume the statement below is a bug, there is a lot of evidence that it is a feature:

The many difficulties in accurately distinguishing domestic and foreign communication make it extremely unlikely that an intelligence agency could avoid domestic calls.

Don't worry folks, there is an eternal reward prepared for those see homeless strangers and invite them in. I happen to think you'll receive that reward whether you believe in it or not. Even if that doesn't work out, life's more pleasant this way. Now, where's the mop, because I think freepatriot spilled his wine on that two-point conversion...

I agree with you about the value of the Sun Microsystems analysis (still in draft form), W.O. This is another piece of the puzzle we've been missing, this time on the operational detail side from those familiar with the technology.

Here are some excerpts from their paper that address the operational and communications-security implications of the Protect America Act (re-arranged a bit for emphasis):

The change from a system that wiretaps particular lines upon receipt of a wiretap order specifying
those lines to one that sorts through transactional data in real time and selects communications of
interest is massive.

[snip]

The Protect America Act, a law enacted in haste, holds the possibility of a vast increase in the number of Americans whose communications and communication patterns will be studied. The surveillance provides access to U.S. communications, a target of great value. The nation may build for its opponents something that would be too expensive for them to build for themselves: a system that allows them to see the intelligence interests of the U.S., a system that may tell them how to thwart those interests, and a system that might be turned to intercept the communications of American citizens and institutions. It is critical that the new surveillance system neither enable exploitation of U.S. communications by unauthorized parties nor permit abuse by authorized ones.

[snip]

The real problem is that these difficulties are intrinsic to the basic design of the Internet. Additional issues arise when interworking VoIP with other telephony services, such as the public switched telephone network. For example, an international call may terminate in the U.S., and then use VoIP the rest of the way (and vice versa), requiring joint analysis across the two kinds of communication networks. The many difficulties in accurately distinguishing domestic and foreign communication make it extremely unlikely that an intelligence agency could avoid tapping domestic calls.

Surveillance technology is an “architected security breach” [15, p. 418] into a communications network and thus a risky business to embark upon. Two situations illuminate different reasons for our concern.

For almost a year beginning in April 2004, over one hundred phones belonging to members of the Greek government, including the prime minister, ministers of defense, foreign affairs, justice and public order, and opposition members in the Greek parliament, were wiretapped through surreptitious software that turned official built-in tapping capabilities —capabilities to be invoked only with legal authorization — to the advantage of as yet unknown parties. What is known is that private communications at the highest levels of the Greek government were wiretapped for ten months [16].

[snip]

Traffic should be collected at international cableheads rather than at tandem switches or backbone routers, which also carry purely domestic traffic. Surveilling at the cableheads will help minimize collection but it is not sufficient in and of itself.

[snip]

Communication providers, who have technical expertise and decades of experience protecting the security and privacy of their customers’ communications, should have an active role in both design and operation.

[snip]

To assure independence the overseeing authority should be as far removed from the intercepting authority as practical. To guarantee that electronic surveillance is effective and free of abuse and that minimization is in place and working appropriately, it is necessary that there be frequent, detailed reports on the functioning of the system. Of particular concern is the real-time use of CDR for targeting content, which must neither be abused by the U.S. government nor allowed to fall into unauthorized hands. For full oversight, such review should be done by a branch of government different from the one conducting the surveillance.

[snip]

Security of U.S. communications has always been fundamental to U.S. national security. The surveillance architecture implied by the Protect America Act will, by its very nature, capture some purely domestic communications, risking the very national security that the act is supposed to protect. In an age so dependent on communication, the loss may be greater than the gain.

http://research.sun.com/people/slandau/PAA.pdf

So there's a whole new avenue of "national security" risk that allowing such widespread domestic security surveillance as championed by the likes of DNI McConnell, the NSA and those in Congress promoting the PAA, the RESTORE Act and the FAAct, etc., without taking the time for full and fair democratic debate or for hearings to allow vetting of the bill language by experts (in both Constitutional/FISA law and the communication technologies involved), could end up putting into play...

Meanwhile, I can't help but think that there must be a way - given American high-tech ingenuity and competition - to devise some simple, elegant software solution that could accurately "geolocate" internet traffic so as to enable the NSA to confidently isolate domestic from foreign IP traffic. Given access to the job, details of the challenge, and enough time and money, and the power of government regulation, surely that's possible, in the not-too-distant future. On the other hand, as William intimates, that "problem" may well be considered a feature, not a bug, by the would-be "domestic over-watchers" in the Office of the Vice President and elsewhere in the Executive Branch. So perhaps they're simply taking full advantage of the supine Congress with which they have been presented, that does as it is told by both political party leadership and the leadership of the Executive Branch, to ram these permanent spying changes through - before such inconvenient facts as provided by David Kris and this Sun.com article can filter into the back rooms of Capitol Hill.

Thanks RFW. Pretty good season for the Sun Devils; 10-2, with losses to only Oregon and USC and a victory over the hated in state rival Arizona. If ASU could have beaten USC Thanksgiving day, they would be heading to the BCS Championship game; if their offensive line could have protected their quarterback, they just might have pulled it off. Oh well. I got no clue on who goes to the BCS title game; Ohio State I guess has to be one of the teams, although I don't think they are really one of the two best teams in the country. The big question is who will be the other team. The strongest contenders appear to be LSU and USC, with an outside shot by Georgia. My guess is that it will turn out to be LSU, but my vote would be for USC. With their quarterback, Booty, being back healthy again, I think they are the best team in the country right now; I saw them live and in person on Thanksgiving and they were pretty freaking impressive.

in a 6/25/07 letter to tom udall (p.55/pdf1) mcconnell characterizes the liability protection as "for persons that allegedly assisted the government with lawful intelligence activities after September 11, 2001."

subsequent correspondence/testimony changes this to "those who assist the government keep the country safe" which includes "those who are alleged to have assisted the government after September 11, 2001."

WHO will gain the coveted invitation to play in the San Diego County Credit Union Poinsettia Bowl or the PapaJohn’s.com in Birmingham, AL? Will New Mexico play in the New Mexico Bowl in New Mexico December 22? If East Carolina and Fresno State accept an invitation to the Sheraton Hawaii Bowl will they be staying at the Honolulu, Sheraton? Will both participants in the Motor City Bowl-played the day after Christmas in Detroit-be from The Automotive State? Here are the College Football News Bowl Match Up Predictions where you may find some answers.

Neil, I don't like that list one bit. I don't really care who plays in the Emerald Nutbowl, but why should we have to watch Kansas play Oklahoma in the Fiesta Bowl? Oklahoma is by all accounts going to be one of the teams as the Big 12 Champion, but the Fiesta damn well ought to give the other invitation to ASU. The Fiesta Bowl was created back in the early 70s to give ASU a bowl game because they kept getting stiffed in favor of lesser teams from the east in the existing bowl games, which, at the time, were mostly in the Midwest and east. ASU drove a lot of fans to the bowl in the early years and provided high scoring exciting games that all put the Fiesta Bowl on the map, not to mention that, until last year, the Fiesta was played in ASU's stadium for the first 30 years of it's existence. Time to pay ASU back and invite them to the Fiesta; plus, they are a better and more exciting team than Kansas (My apologies to any offended Jayhawks).

Have a great day with your friends Marcy. I know many families and friends who do a day of being thankful all through the holiday season. As you said less stress.

I have often bought organic turkeys for Thanksgiving the one I bought this year in Boulder at Whole Foods was dry and tasteless, hate to admit it but I really like the ones injected with fat...the Butterball. One of my favorite simple dishes during the holidays is pomegrante seeds, mandarin oranges and chopped up mint as a cold salad. Breaks up the fat.

I have been wondering all through this campaign season (Gore was right when he said it started way too early and is an convenient way to distract the American people) why the MSM seems to ignore John Edwards. This morning on Meet The Press and on Matthews they barely mention him. Why is this? Who has Edwards pissed off? I know he is not taking any Pac money as Clinton and Obama are doing. Is this what has pissed owners of networks off?

Odd somehow that folks would support Clinton after she voted for the Kyl Liebermann amendment as Senator Webb stated this amendment "is tantamount to declaring war on Iran" and Obama was conveniently out of town that day for that vote.

John Edwards has clearly come out for diplomacy in regard to Iran and the rest of the middle east and called Hillary out on her yes war vote. Obama did not impress me what so ever during the John Bolton and Condi "mushroom cloud" Rice nomination hearings. When Obama happenned to be out of town the day of the Kyl Liebermann amendment vote he sealed his playing it too safe status for me. I am not going to vote for a candidate because they are a woman or black it is going to be based on will they play the diplomacy card in the middle east and question our support of Israel no matter what they do.

If Wm Ockham happens to return and has a moment: first assume that Congress has already been hornswoggled by failing to recognize the DNI 'assumption' that metadata = content. Second, assume there is no subheading for 'metadata' b/c the DNI doesn't want to have a public discussion about it (despite the fact that thousands of people work with it every day, so it's hardly any secret). So 'metadata = content' slips silently, unremarked upon, into federal law. No surprise there.

Now DNI wants to 'process' or mine all that metadata in real time. Assume that few, if any, in Congress will understand the technical details of what's happening, so there actually won't be oversight. No surprise there, either.

The 'risk scenarios' in that Sun article suggest that a criminal enterprise could insert itself into the FISA architecture -- and the criminals could then exploit it to search 'in real time' by using the 'metadata'; in other words, FISA just made it easy for them to commit criminal activity on a grand scale. That 'risk section' evokes a serious threat of 'retrovirus': enter the system, insert yourself into host cells (messages), then alter them to replicate your desired code. Sinister.

The Sun article started reading like a scifi novel -- but a scifi novel would probably add another layer of danger: contractors. It's hard to believe that DNI can keep control of that architecture; nevertheles, the probable threat of rogue agents has had no decent public discussion.

Anyone who's ever been a fraud target, or had to deal with issues related to Identity Theft, should be very spooked by FISA. Skin-crawling creepiness there.

Empty wheel is over at Firdoglake with Professor Juan Cole who is visiting FDL.

EW I have been banned over at FDL for challenging the moderator who banished me for "my tone" (while Jane and others can use locker room talk about our Reps and any other issue) in regard to the Israeli Palesinian conflict (I think FDL self censors on this issue just like the MSM). I know this is asking a lot but would you be willing to ask Prof Cole about the persistent mis-interpretation of Iranian President Ahmadinejads statements about Israel?

Aw crikey Freepatriot. The local press now informs that Hawaii's comeback victory last night, which caps an undefeated season, somehow makes them BCS mandatory and probably knocks ASU out of the BCS bowl picture and into the Holiday Bowl. I got to admit, Hawaii is a nice little story and I like seeing big, fat fingers like that being poked into the eye of the BCS. Also, Hawaii beat ASU in some Hawaii Bowl last year, so I guess I can live with it; but this year's ASU team is a light year better than last year's team. I don't think Hawaii could beat ASU's team this year under Dennis Erickson; so it is a little bit of a bummer. Oh well....

Another question for Prof Cole. At FDL Naomi Wolf has referred to what is taking place for people in Iraq, Lebanon, Gaza as "collective disorientation". Were there similar techniques used on the people of the middle east during Napoleons rampage?

What I found "frightening" on that Sun PDF, was not that criminals could make use of this technology, but that other nation-states may well be taking this very same massive capture and data-mining technology and using it against us.

Like nuclear weapons, once one country has it, there is no way to stop other countries from having it. You can't un-ring the bell nor put the genie back in the bottle.

And unlike the use of nuclear weapons which leave a lot of radioactive fingerprints, this massive capture and data-mining technology is both non-intrusive, and non-detectable.

The Chinese, Russians, and many others all have on-home-territory access to the big DS5 (400.352 Megabit/s) and E5 (565.148 Megabit/s) pipes that connect the world's communications networks.

Over the course of time, they can easily acquire the very same Narus or similar capture technology that is at the heart of the AT&T lawsuits.

It would not surprise me in the least to find out that China for example, does or will do massive capture and data-mining of these very same communications networks for both military and economic advantage.

Mad Dogs - Man, it pains me to say this, and you know my position against all this crap here in the US, but it strikes me that that genie has long been out of the bottle and those other world powers are going to do what they are going to do irrespective of what the US does at this point. Especially China and Russia (Boy, Bush has been masterful at keeping the Russians tamped down hasn't he? Heh heh).

Mad Dogs, I didn't even want to go there. By the time I read about page 6 of that Sun document, it was starting to morph into some dark, sinister scifi nightmare that kind of froze my brain into a state of despair. I stopped at 'criminal', but agree with your scenario.

Congress's failure to sit up and ask far more questions is unconscienceable.
'A feature', not a bug. Indeed.

You have it a little backwards. FISA said that metadata is content and therefore protected. The DNI desperately wants to remove that from the law because they've been mining that metadata on domestic and international and foreign calls. You're right that they're trying to slip this bit by the Congress. I'm more worried by criminal activity by our government and its corporate allies than smaller-scale organized crime.

Mad Dogs and bmaz,

The U.S. has a huge advantage over nation-states because most of the world's fiber is controlled by U.S. telecoms. And we have pretty tight export controls over stuff like the Narus equipment. The Germans and Japanese could probably make stuff like it, but we'll try to buy them off. The Russians could have been a contender, but in the '90s they really messed up their software industry. The Chinese will be a real threat when they realize that geeks need more flexibility than the current Chinese society allows (I work with some of the brightest people from all over the world, only my Chinese co-worker can't imagine moving back home).

...We're now wondering how its software is being used abroad in places like China and the Middle East...

...But more sobering is that the company is selling its technology to folks like China's Shanghai Telecom for a system we'll never know exactly how is being used...

...And here is Narus' response to questions about how customers are using its product: "Once our customers buy your product, it's relatively opaque to us," said Steve Bannerman, vice president of marketing.